Thursday, September 28, 2017

A Supreme chance to cage the gerrymander -- Sept. 28, 2017 column

By MARSHA MERCER

The Supreme Court
convenes Monday after its summer recess and on Tuesday takes up a case that
could end extreme partisan gerrymandering.

Justices will hear arguments
in Gill v. Whitford, a case from Wisconsin where, after Republicans took
complete control of the state government in 2010, the state legislature redrew state
Assembly districts, resulting, a federal court ruled, in unconstitutional
partisan gerrymandering.

The plan purposely favored
Republicans and hurt Democrats to such a degree that it violated the
constitutional guarantees of the Fourteenth Amendment equal protection clause and
the First Amendment right of association, the district court ruled.

Wisconsin appealed, saying
its plan does not violate the Constitution and, besides, partisan
gerrymandering is nothing new. The Supreme Court agreed to hear the case and
granted the state’s request to block the lower court’s order to create a new
redistricting plan by fall.

Justice Ruth Bader
Ginsburg says Gill could be the most
important case of the entire term.

And she told CBS’s
Charlie Rose Tuesday: “It’s drawing a map so people think, `Why bother voting?
This is a secure Republican district or this is a secure Democratic district,
so my vote doesn’t count.’ That’s not a good thing for democracy.”

Gerrymandering creates
“safe” political districts that make general elections uncompetitive and give
party insiders greater power than constituents, a bipartisan group of current
and former members of Congress said in a friend of the court brief, one of
dozens filed in the case. Rep. Don Beyer, Democrat of Virginia, was among the
brief’s signers.

The Supreme Court,
mindful that redistricting is a state responsibility, has been reluctant to rule
on political gerrymandering disputes, although it has kept a watchful eye on
racial gerrymandering.

A question for the court
now is how much partisan gerrymandering is too much.

Judicial tea leaf-readers
say the Supreme Court, by putting the lower court’s ruling on hold, suggests it
may side with the state. Much depends on swing vote Justice Anthony Kennedy and
whether a majority can agree on standards for judging whether redistricting
plans are so partisan as to be unconstitutional.

Whatever the court decides,
two things are clear: Gerrymandering has been with us always – and it erodes voter
confidence and trust in government.

Charles Ledyard Norton tells
the story of the term gerrymander in his 1890 book, “Political Americanisms.”

Massachusetts Gov. Elbridge
Gerry signed a bill in 1811 that adjusted legislative district lines. When
artist Gilbert Stuart took a look at the map, he penciled in a few lines and told
a Boston newspaper editor: “That will do for a salamander.”

“Salamander?” the editor
riposted. “Call it a Gerrymander.”

Poor Gerry has been
carrying the gerrymander burden ever since. But should he?

One of the first
gerrymandering episodes actually took place years before in Virginia.

An “atmosphere of
bitterness” hung over the first federal election in Virginia in 1789, following
Virginia’s unconditional adoption months earlier of the Constitution, the
editors of the James Madison papers explain.

Gov. Patrick Henry, a
leader of the anti-Federalists, wanted revenge on the Federalists, so he changed
voting lines to make Federalist James Madison run against anti-Federalist James
Monroe for a seat in the U.S. House. Henry made Orange County part of an
eight-county district that was strongly anti-Federalist and had opposed
ratifying the Constitution.

Madison campaigned hard,
and in the end he beat Monroe by 336 votes out of 2,280 cast.

In his biography of Henry
in the late 1890s, Moses Coit Tyler wrote: “Surely it was a rare bit of luck in
the case of Patrick Henry that the wits of Virginia did not anticipate the wits
of Massachusetts by describing this trick as `henrymandering,’”

Henry “thus narrowly
escaped the ugly immortality of having his name handed down from age to age in
the coinage of a base word which should designate a base thing -- one of the
favorite, shabby maneuvers of less scrupulous American politicians,” Tyler
wrote.

Yes, Henry was lucky, but
American voters are still victims of the shabby maneuver.

Gerrymandering may be as
American as Patrick Henry, but if voters are lucky, the Supreme Court will
agree with Ginsburg that extreme partisan gerrymandering is bad for democracy
-- and end it.